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HomeMy WebLinkAboutRapinda 99-02-19 - , IN THE MATTER OF AN ARBITRATION BETWEEN: KENORA ASSOCIATION FOR COMMUNITY LIVING - AND- ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND IN THE MATTER OF A GRIEV ANCE OF RHONDA RAPINDI i ! Kevin Whitaker, Sole Arbitrator Appearances for the Association Frederick J.W. Bickford, Counsel James C. Retson, Executive Director Appearances for the Union Jim Gilbert, Grievance Officer Treena Bingham, Steward Local 702 Rhonda Rapindi, Grievor Hearings were held in Kenora on February 1 and 2, 1999. \ - . I ) The union alleges that the grievor, a casual part time employee, has been dismissed without just cause, contrary to the collective agreement. The employer asserts as a preliminary matter that the collective agreement does not permit a casual part-time worker to grieve dismissal. For this reason, the employer takes the position that the grievance is inarbitrable. Further, the employer does not concede that the grievor has been dismissed and takes the position that the grievor is simply no longer being scheduled to work. At the outset of the hearing, the employer sought a ruling on the preliminary matter prior to dealing with the grievance on the merits. The union opposed this request. I ruled orally that the preliminary matter should be dealt with flfst and then the merits if necessary. The preliminary matter was argued on agreed facts. The employer suggested that even if the grievor was in fact discharged, such a grievance was inarbitrable because the collective agreement only permits regular employees past probation to grieve discharge without just cause. ) The union took the position that a part-time casual employee could sustain such a grievance and in the alternative that the discharge could be challenged on the lesser standard of reasonableness and good faith." Following argument, I ruled orally that the collective agreement did not permit a casual part-time employee to grieve discharge without just cause. I reserved my decision on the issue of whether or not such a discharge could be grieved on a lesser standard of reasonableness or good faith. The parties were directed to proceed on the merits. After my ruling on the preliminary issue, the parties agreed to have me act as a mediator. The grievance was subsequently settled. As part of the settlement, the parties requested that I issue my reasons for the preliminary ruling. This comprises the balance of the award. All references to "Articles" which follow are to those found in the collective agreement between the parties. ) 2 n The facts necessary to deal with the preliminary issue are uncontested. At the point of filing the grievance, the grievor was a casual part-time employee. She had neither seniority nor had entered into any probationary period. Article 1 describes the bargaining unit. It includes four classes of employees: regular full time, regular part-time, casual part-time and temporary. Casual part-time and temporary employees do not acquire seniority. Regular full-time and regular part-time employees do acquire seniority. Article 1.07 defines "casual part-time employee" as: ...an employee who is called in to work on an "as required" basis and whose employment is therefore irregular and may vary in length from day-to-day and week-to-week. A casual part-time employee may not acquire seniority. . Article 11 deals with probation and seniority. Regular full.;time and regular part-time ¡ , employees must complete a period of probation prior to being credited with seniority. If a casual part-time or temporary employee obtains a regular part-time or regular full-time position, time worked in casual or temporary positions will be credited towards the probationary period. Article 11 repeats the provisions of Article 1 which make it clear that seniority is not acquired by either casual or temporary employees. Article 2 describes management rights. Article 2.01(b) reads in part with underline added: .,.the Union acknowledges that it is the exclusivejùnction of the Employer, subject to the express provisions of this Agreement, to: (b) hire, retire, classifY, transfer, assign, appoint, promote, demote, layoff, recall, suspend, and to discipline or discharge, any employee for just cause urovided that a claim bv an emulovee who has comuleted the urobationary ueriod and acquired seniority that he has been discharged or disciulined without iust cause may be the subiect of a '{1'ievance and/or arbitration and dealt with 3 as hereinafter provided: ì Article 8 sets out the grievance procedure. Article 8.01 reads with underline added: A grievance is defined as any difference between the Employer and an employee or employees as to the interpretation, application, administration, or alleged violation, of the Agreement. However. this shall not be construed to allow a probationary emvlovee to wieve his termination or dismissal. Article 10 is entitled "Discharge Grievances". Article 10.01 indicates that a number of specified causes such as "use of alcohol" amongst others, will be conclusively deemed to be sufficient for discharge. The same article also provides however that this deeming "will not deprive any employee of the grievance procedure". Article 10.02 reads with underline added: If a regular full-time or regular Dart-time emvlovee who has completed his vrobationarv period believes he has been wrongfully discharged, he may file a written grievance with the Executive Director within frve (5) ì calendar days after he has been given notice of discharge. Steps 1 and 2 of the grievance procedure shall I be omitted in that case, Article 10.04 describes the authority of a Board of Arbitration or an Arbitrator dealing with a "discharge grievance". This includes the usual language permitting a confirmation of the dismissal, reinstatement, or some other penalty as deemed just and reasonable in the circumstances. ) 4 ill The union relied on a number of authorities which stand for the proposition that the right to grieve discharge for unjust cause should only be circumscribed where that is the clear intention of the parties as reflected in the collective agreement. I accept this principle. The collective agreement expressly provides that casual and temporary employees will not acquire seniority nor commence a probationary period. Regular (both full-time and part- time) employees acquire seniority after having completed a probationary period. Article 2.01(b) permits the employer to discharge any employee for just cause "provided" that this action might be challenged through the grievance and arbitration process by an employee who has completed a probationary period and has acquiredseniori1y. The employer's ability to dismiss for cause in this Article is expressly made subject to the grievance and arbitration process for regular employees past probation. In my view, this reference to employees past probation must mean also that if an employee has not completed probation and acquired seniority, then they may not challenge their discharge for cause through the grievance procedure. If this last consequence did not follow, there would be no purpose in including the qualifying phrase underlined above, in Article 2.01(b). It is a fundamental principle of contract interpretation that words are assumed to have meaning. In the union's submission, Article 2.01(b) would mean the same thing even if this particular phrase were to be removed. The interpretation of Article 2.01(b) advanced by the employer is consistent with the language found in the last sentence of article 8.01. This sentence simply states that the definition of grievance in the Article shall not be construed to permit a probationary employee to grieve termination or dismissal. Article 10 describes the process and scope of discharge grievances. This Article provides that discharge is deemed to be the appropriate disciplinary response for particular offences, the powers of an Arbitrator or Board of Arbitration are derIDed with respect to discharge grievances, 5 and the grievance process is amended to permit expedition. Article 10.02 clearly contemplates that this process (which I take to mean the discharge grievance process) will only be followed with respect to employees who have again "completed" a probationary period. This makes Article 10 consistent with my reading of Articles 2 and 8. The provisions of Articles 2,8 and 10 when read together, appear to consistently preclude employees other than those who have completed probationary periods from grieving discharge without just cause. To reiterate: Article 2.01(b) provides that the employer's authority to discharge for cause is only subject to challenge through the grievance procedure by employees who have acquired seniority and completed probation; Article 8.01 provides that the definition of "grievance" cannot be read so as to permit a probationary employee to grieve termination or dismissal; and Article 10:02 provides within the "mini-code" of Article 10 that applies to discharge grievances, that this process is only followed with respect to employees who have completed probation. The union argues that the provisions of Article 10.01 indicate that "any employee" will not be deprived of the grievance procedure and that as this is within the general Article entitled "Discharge Grievances", it means that any employee may file a discharge grievance. I do not agree. The phrase "will not deprive any employee" follows the word "but", clearly in reference to the preceding passage that describes offences deemed to be sufficient for discharge. In my view, this means that an employee who could otherwise file a discharge grievance (an employee past probation) will still have the right to file such a grievance, notwithstanding the fact that the alleged misconduct is an offence deemed in Article 1 0.0 1 to be sufficient for discharge. It is also the case that the union's argument on this point would run counter to the express language defining the term "grievance" in article 8.01. ) 6 . . Finally, if the union was correct, the result would be that casual (and perhaps temporary employees within the tenn of their period of employment) would enjoy greater job security with respect to tennination than regular employees who had yet to complete probation. Despite the union's able submission on this point, I think that this result is counter-intuitive. The employer and a regular employee have made a significant commitment to each other. Unlike regular employees, casual employees are provided with no schedule of "nonnal" hours and may be used very infrequently on an irregular basis. A regular employee's relationship with the employer might be described as more "substantial" than that of the casual employee. There is clearly a difference between the two types of employment status in the degree of mutual obligations described in the collective agreement. It does not make sense that the employer should be put to a higher standard of proof in justifying its decision to end the less "substantial" relationship, particularly where there is no obligation to provide any particular quantity or frequency of work to that class of employee. ) ~ ) 7 . . IV As a result, I find that the language of the collective agreement indicates the parties' clear intention to preclude casual part-time employees from grieving discharge for unjust cause. Accordingly, the grievor may not advance such a claim. I am obliged to both parties for their well reasoned and thorough submissions. Dated at Toronto this 19th Day ofPebruary 1999 \ I j ~~ ~ Kevin Whitaker, Sole Arbitrator ) 8